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End User License Agreement

These End User License Terms (“Terms”) are the only terms that govern installation, execution, and use of any SBS Software (as defined below) set forth in an order form referencing these Terms (“Order Form”) and are entered into between the customer listed on the applicable Order Form (“you” or “Customer”) and Spatial Business Systems LLC, a Delaware limited liability company (“SBS”, “we”, or “us”).  Together, the Order Form and these Terms form the “Agreement” between the parties.

CAREFULLY READ THESE TERMS BEFORE INSTALLING AND USING THE SOFTWARE.  BY SIGNING AN ORDER FORM, CLICKING “I AGREE” TO THESE TERMS, OR INSTALLING THE SOFTWARE, YOU AGREE TO ENTER INTO AND BE BOUND BY THIS AGREEMENT. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF CUSTOMER, BY ACCEPTING AN ORDER FORM, CLICKING “I AGREE,” OR INSTALLING THE SOFTWARE, YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT ACCEPT AN ORDER FORM CLICK “I AGREE,” OR INSTALL THE SOFTWARE. IF YOU HAVE ALREADY INSTALLED THE SOFTWARE AND YOU DO NOT AGREE TO THESE TERMS, PROMPTLY UNINSTALL AND RETURN THE SOFTWARE AND THE ACCOMPANYING ITEMS (INCLUDING WRITTEN MATERIALS).

This is a license agreement and not an agreement for sale. SBS retains all ownership rights in the Software and you may not load or use the Software in any computer or copy it without a license from SBS. You may not use the Software for any purpose other than use in accordance with this Agreement.

1. DEFINITIONS

1.1 “Affiliate” means any entity controlled by, controlling, or under common control with an entity, inclusive of direct and indirect subsidiaries of such party.

1.2 “Confidential Information” means information that is disclosed or made available by one party (“Disclosing Party”) to the other party (“Receiving Party”) under this Agreement, or which Receiving Party has access to in connection with this Agreement, including without limitation (a) information relating to the business of Disclosing Party and (b) all information of Disclosing Party that should reasonably have been understood by Receiving Party to be proprietary and confidential to Disclosing Party or to a third party, because of legends or other markings, the circumstances of disclosure or the nature of the information itself. Confidential Information may be disclosed in written or other tangible form or by oral, visual or other means.  Confidential Information of SBS includes, without limitation, the Software, SBS Tools, training materials, Documentation, and all routines, subroutines, directories, tools, programs, or any other technology included therein.

1.3 “Documentation” means any printed, online or electronic documentation, information, specifications, instructions or material in connection with the Software.

1.4 “Intellectual Property Rights” means all worldwide intellectual property rights in existence now or in the future, including without limitation, copyrights, trademarks, service marks, trade secrets, know how, inventions, patents, patent applications, moral rights and all other proprietary rights, whether registered or unregistered.

1.5 “SBS Tools” means the files and tools that SBS may provide to you to assist with the implementation and/or use of the Software.

1.6 “Software” means the software product(s) set forth on your Order Form and any modified, updated or enhanced versions of such programs or modules that SBS may provide to Customer pursuant to this Agreement, including (i) any updates or upgrades to the Software that you may receive from time to time under a subscription service or other support arrangement, and (ii) any add-in modules to the Software you may order and install from time to time.

1.7 “User” or “Named User” is Customer’s authorized employee, agent, consultant, or contractor to whom Customer has assigned a unique, secure login credential (identity) enabling access to a Software product that requires such identity in order to access identity-managed capabilities within a Software product for Customer’s exclusive benefit. Named User License access is managed via an online license management tool hosted by SBS (called the SBS License Manager) and is required to track individual Named User accounts against the available license count provided in the Order Form.

2. LICENSE AND RESTRICTIONS

2.1 License. Subject to the terms and conditions of this Agreement, SBS grants you a limited, non-exclusive, non-transferable, non-sublicensable, right to install and execute the Software solely for Customer’s internal business purposes in accordance with the Documentation during the Term.  Only Users may access or utilize the Software.  In the event SBS provides you with any SBS Tools (as set forth on the applicable Order Form), then SBS grants you, for only so long as your license to the Software is in-effect hereunder, a non-exclusive right to access and use the SBS Tools solely in connection with your implementation and/or use of the Software.

2.2 Types of Licenses. SBS offers Software under one or more of the following license types, as specified in the applicable Order Form. The applicable license type, metrics, and entitlements for each Software product shall be as set forth in the Order Form and/or Documentation.

2.2.1 “Named User License” applies to Software that can only be installed and used on a single personal computer at any given time and is prohibited from being installed and used on a network or any other multi-station computer system that allows simultaneous use by several Named Users. The following Software products are Named User Licenses:

  1. Automated Utility Design
  2. Automated Broadband Designer
  3. Distribution Design Studio (DDS)
  4. DDS Designer Mobile
  5. Substation Design Suite
    • Protection and Control
    • Physical for AutoCad
    • Physical for Inventor
    • BIM Substation Designer

2.2.2 “Environment License” means a license to deploy and use the Software within one or more designated environments (e.g., production, test, development, or other logical deployment instances), as specified in the applicable Order Form.

An Environment License:

  1. Is not tied to a specific server, machine, or individual user, but rather to a defined deployment environment;
  2. Permits access and use of the Software by authorized Users across the Customer’s organization within such environment;
  3. May include constraints based on environment count, data volume, integrations, throughput, or other usage metrics, as specified in the Order Form or Documentation;
  4. Does not permit duplication or expansion of environments beyond those licensed without SBS’s prior written consent.

The following Software products are typically offered as Environment Licenses:

  1. Utility Data Hub (UDH)
  2. SBS Agentic AI (as applicable based on deployment model)

2.2.3 “Hosted / SaaS License” means a subscription-based right to access and use Software hosted by or on behalf of SBS via a cloud or managed environment.

Hosted Licenses:

  1. Are typically provided on a subscription basis during the Term;
  2. May be licensed based on Named Users, usage volumes (e.g., transactions, compute, API calls), or other consumption metrics, as specified in the Order Form;
  3. Do not grant Customer the right to install the Software locally.

The following Software products may be offered under a Hosted License model:

  1. SBS Agentic AI (including assistant, automation, or design capabilities)
  2. UtilityContent (if delivered as hosted content or services)
  3. Forester UVM
  4. Other SBS-hosted offerings as designated in the Order Form

2.3 Restrictions

Customer may only use the Software as expressly set forth in this Agreement. Customer may only reproduce the Software for archival and backup purposes.  All copies of the Software will include SBS’s copyright and other proprietary notices.  Customer acknowledges that the Software and their structure, organization, and source code, constitute valuable trade secrets of SBS and its suppliers.  Except as expressly permitted in Section 2.1, Customer will not, and will not permit any third party to:  (a) modify, adapt, alter, translate, or create derivative works from the Software or the Documentation; (b) merge the Software with other software other than through interfaces published by SBS; (c) sublicense, distribute, rent, sell, use for service bureau use or as an application service provider, lease, rent, loan, or otherwise transfer or provide the Software or the Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software (except to the extent required by applicable law); (e) remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices included in the Software;  (f) otherwise use or copy the Software except as expressly permitted in this Agreement; (g) copy or use the Software, Documentation or SBS Tools except as permitted by this Agreement; (h) utilize any equipment, device, software, or other means designed to circumvent or remove any form of copy protection used by SBS in connection with the Software, or use the Software together with any authorization code, serial number, or other copy protection device not supplied by SBS; (i) – export the Software, Documentation or SBS Tools in violation of U.S. or other applicable export control laws; (j) use “multiplexing” technologies such as hardware or software that reduces the number of users or devices directly accessing or using the Software; or (k) – resell, transfer or use, for any purpose other than demonstration, test or evaluation any product identified as “Not for Resale” or “NFR.”.  Customer will notify SBS of any unauthorized use or disclosure of the Software. SBS reserves all rights not expressly granted to you in this Agreement.  User access credentials may not be shared by more than one individual, and Customer shall be responsible for all use of its User credentials.

You shall be responsible for maintaining secure access to the Software as permitted under this Agreement. You shall not: (i) transmit or share identification and/or password codes to persons other than to authorized users for whom such codes were generated; (ii) permit authorized users to share identification and/or password codes with others; (iii) permit the identification and/or password codes to be cached in proxy servers and accessed by individuals who are not authorized users; (iv) permit access to the Software through a single identification and/or password code being made available to multiple users on a network; or (vi) attempt or permit any person without valid identification and/or password codes to attempt to access the Software. Unless expressly required by applicable law without the possibility of contractual waiver, the Customer shall not perform any benchmark testing or any of the following security testing of any Software product without SBS’s prior written consent: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing.

3. TERM AND TERMINATION

3.1 Term

The term of the Agreement will begin on the date set forth in the applicable Order Form and will continue for the duration set forth on the Order Form (the “Term”).

3.2 Termination

Either party may terminate the Agreement by written notice to the other party if such party materially breaches any of its obligation of the Agreement and does not cure such breach within thirty (30) days after receiving written notice.

3.3 Effects of Termination

Upon termination or expiration of the Agreement for any reason: (a) any amounts owed to SBS under this Agreement before such termination will be immediately due and payable, including related expenses; (b) all licenses granted in the Agreement will immediately cease to exist; (c) Customer must promptly discontinue all use of the Software, erase, uninstall, or destroy (as directed by SBS) all copies of the Software from Customer’s computers, and return to SBS or destroy all copies of the Software and Documentation on tangible media in Customer’s possession; and (d) each party will promptly return to the other party all Confidential Information of the other party in its possession.

4. DELIVERY, ACCEPTANCE AND INSTALLATION

SBS will deliver the Software electronically via SBS’s Support Portal.  The Software will be deemed accepted upon delivery.  Unless otherwise set forth in this Agreement, Customer is responsible for installing the Software in accordance with the Documentation and the installation instructions provided by SBS.  Customer is responsible for providing all applicable hardware and the third party software required for the operation of the Software.  All third party software license agreements will be agreed to by Customer and the applicable third party software vendor.

5. FEES AND PAYMENT

5.1 Software and Support Fees

Customer will pay SBS the Fees set forth in the applicable Order Form.  All Fees are non-cancelable and non-refundable, except as otherwise expressly set forth in this Agreement.  Fees exclude, and Customer will make all payments of Fees to SBS free and clear of, all applicable sales, use, and other taxes and all applicable export and import fees, customs duties and similar charges.

5.2 Payment Terms

Unless otherwise agreed to in writing by both parties, payment for all fees will be due by Customer 30 days after Customer’s receipt of the applicable invoice.  All payments must be made in U.S. dollars.  SBS may charge Customer interest on any amounts not paid when due at the rate of 1½% per month or the maximum rate permitted by applicable law; whichever is less, from the due date until paid, and Customer shall be responsible for SBS’s costs of collection, including attorneys fees.

The SBS invoice will not include taxes and, unless otherwise set out in the Order Form, the Customer shall pay all sales, use, value-added, gross receipt, stamp duty, stamp tax, goods and services tax, and other similar taxes imposed by applicable laws on the Software associated with this Agreement.

6. OWNERSHIP

The Software, the Documentation, and all worldwide Intellectual Property Rights therein, are the exclusive property of SBS and its suppliers.  All rights in and to the Software and Documentation not expressly granted to Customer in this Agreement are reserved by SBS and its suppliers.  Customer will not remove, alter, or obscure any proprietary notices (including copyright notices) of SBS or its suppliers on the Software, or the Documentation. As between the parties, title and copyrights to the Software, Documentation, SBS Tools and accompanying materials, if any, and any copies made by you remain with SBS and its licensors. The structure, organization, and code of the Software are valuable trade secrets of SBS and its licensors. Unauthorized copying of the Software, Documentation or SBS Tools, or failure to comply with the Agreement, will result in automatic termination of this Agreement. The Software is licensed, not sold.  No intellectual property rights in the Software transfer to Customer.

7. CONFIDENTIALITY

7.1 Protection of Confidential Information

Receiving Party will maintain the confidentiality of the Disclosing Party’s Confidential Information and will not use Confidential Information of Disclosing Party for any purpose other than to perform its obligations and exercise its rights under this Agreement. Receiving Party will disclose the Confidential Information of Disclosing Party only to its employees or contractors who have a need to know such Confidential Information for such purposes and who are under a duty of confidentiality no less restrictive than Receiving Party’s duty hereunder.  Receiving Party will protect Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

7.2 Exceptions

Confidential Information does not include information that:  (a) was already known to Receiving Party without restriction at the time of disclosure by Disclosing Party; (b) was disclosed to Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of Receiving Party has become, generally available to the public; or (d) was independently developed by Receiving Party without use of Disclosing Party’s Confidential Information.  In addition, Receiving Party will be allowed to disclose Confidential Information of Disclosing Party to the extent that such disclosure is (i) approved in writing by Disclosing Party, (ii) necessary for Receiving Party to enforce its rights under the Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court of similar judicial or governmental administrative body, provided that Receiving Party notifies Disclosing Party of such required disclosure promptly and in writing and cooperates with Disclosing Party, at Disclosing Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.

7.3 Confidentiality of Agreement

Neither party will disclose any terms of the Agreement to anyone other than its attorneys, accountants, and other appropriate personnel except (a) as required by law, (b) pursuant to a mutually agreeable press release, or (c) in connection with a contemplated transfer of such party’s business permitted hereunder (provided that any third party to whom the terms of the Agreement are to be disclosed signs a confidentiality agreement protecting the Disclosing Party’s Confidential Information to the same extent as this Agreement).

8. WARRANTY; DISCLAIMERS

8.1 SBS Warranty

SBS warrants that the Software will be free of defects in materials and will perform substantially in accordance with the Documentation for a period of ninety (90) days from the date of receipt by you. SBS does not warrant that the Software or service will meet your requirements or that the operation of the Software will be uninterrupted or error free or that any internet tool or service will be completely secure. SBS’s entire liability and your sole remedy under this warranty shall be to use reasonable efforts to repair or replace the nonconforming media or Software or re-perform the service. If such effort fails, SBS or its distributor or reseller shall in their discretion (i) refund the price you paid for the Software upon return of the nonconforming Software and a copy of your receipt or the price you paid for the service, as appropriate, or (ii) provide such other remedy as may be required by law. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days from the date of receipt by you, whichever is longer.

8.2 Customer Warranty

Customer represents and warrants that it will not provide SBS with any personally identifiable information or data, including without limitation any protected health information, social security numbers, banking information, credit or debit card numbers, consumer emails or phone numbers, or other sensitive data or information.

8.3 Exclusions

The warranties set forth in this section do not cover any copy (complete or partial) of the Software or any Documentation which has been altered or changed in any way by Customer or other third party.  SBS’s limited warranty is void if breach of the warranty has resulted from (i) accident, corruption, misuse or neglect of the Software; (ii) acts or omissions by someone other than SBS; (iii) combination of the Software with products, material or software not provided by SBS or not intended for combination with the Software; or (iv) failure by you to incorporate and use all updates to the Software available from SBS.  All SBS Tools are provided “AS IS” without any warranty.

8.4 Disclaimer

PRODUCT CONFIGURATION SOFTWARE, COMPUTER-AIDED DESIGN SOFTWARE AND OTHER TECHNICAL SOFTWARE ARE TOOLS INTENDED TO BE ADMINISTERED BY TRAINED PROFESSIONALS ONLY. THEY ARE NOT SUBSTITUTES FOR YOUR PROFESSIONAL JUDGMENT. PRODUCT CONFIGURATION SOFTWARE, COMPUTER-AIDED DESIGN SOFTWARE AND OTHER TECHNICAL SOFTWARE ARE INTENDED TO ASSIST WITH PRODUCT CONFIGURATION, QUOTATION AND DESIGN, AND ARE NOT SUBSTITUTES FOR INDEPENDENT VALIDATION OF COMPUTED PRODUCT PRICE (OR COST), BILL-OF-MATERIALS COHERENCE, MANUFACTURABILITY, SAFETY AND UTILITY. DUE TO THE LARGE VARIETY OF POTENTIAL APPLICATIONS FOR THE SOFTWARE, THE SOFTWARE HAS NOT BEEN TESTED IN ALL SITUATIONS UNDER WHICH IT MAY BE USED. SBS AND ITS LICENSORS SHALL NOT BE LIABLE IN ANY MANNER WHATSOEVER FOR THE RESULTS OBTAINED THROUGH THE USE OF THE SOFTWARE. PERSONS USING THE SOFTWARE ARE RESPONSIBLE FOR THE SUPERVISION, MANAGEMENT AND CONTROL OF THE SOFTWARE. THIS RESPONSIBILITY INCLUDES, BUT IS NOT LIMITED TO, THE DETERMINATION OF APPROPRIATE USES FOR THE SOFTWARE AND THE SELECTION OF THE SOFTWARE AND OTHER PROGRAMS TO ACHIEVE INTENDED RESULTS. PERSONS USING THE SOFTWARE ARE ALSO RESPONSIBLE FOR ESTABLISHING THE ADEQUACY OF INDEPENDENT PROCEDURES FOR TESTING THE RELIABILITY AND ACCURACY OF ANY PROGRAM OUTPUT, INCLUDING ALL ITEMS CONFIGURED, QUOTED OR DESIGNED BY USING THE SOFTWARE. The express warranty set forth in this Agreement is the only warranty given by SBS with respect to the Software and Documentation furnished hereunder and any service supplied from time to time. EXCEPT FOR THE EXPRESS LIMITED WARRANTY IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SBS AND ITS LICENSORS MAKE, AND YOU RECEIVE, NO WARRANTIES, REPRESENTATIONS, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR WARRANTIES OTHERWISE IMPLIED BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE) WITH RESPECT TO THE SOFTWARE. ANY STATEMENTS OR REPRESENTATIONS ABOUT THE SOFTWARE AND ITS FEATURES OR FUNCTIONALITY IN ANY MATERIALS PROVIDED TO OR ANY COMMUNICATION WITH YOU ARE FOR INFORMATION PURPOSES ONLY, AND DO NOT CONSTITUTE A WARRANTY, REPRESENTATION, OR CONDITION. WITHOUT LIMITING THE FOREGOING, SBS AND ITS LICENSORS DO NOT WARRANT THAT THE OPERATION  OR  OUTPUT  OF  THE  SOFTWARE  WILL  BE    UNINTERRUPTED, ERROR-FREE, SECURE, ACCURATE, RELIABLE, OR COMPLETE, WHETHER OR NOT UNDER SUPPORT BY SBS OR ANY THIRD PARTY. NOTHING IN THE FOREGOING RESTRICTS THE EFFECT OF WARRANTIES OR CONDITIONS WHICH MAY BE IMPLIED BY LAW WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED NOTWITHSTANDING A CONTRACTUAL RESTRICTION TO THE CONTRARY.IN NO EVENT MAY YOU BRING ANY CLAIM, ACTION OR PROCEEDING ARISING OUT OF THE WARRANTIES HEREIN MORE THAN ONE YEAR AFTER THE DATE ON WHICH THE BREACH OF WARRANTY OCCURRED.

9. MAINTENANCE AND SUPPORT

You may be entitled to Software maintenance and support for the Software pursuant to your Order Form solely during the Term. In such cases, SBS will provide Software maintenance and support for the Software set forth in your Order Form during the Term in accordance with the support terms and conditions posted on the SBS website, which are incorporated herein by reference and, as of the version date hereof, can be found at SBS Maintenance and Support Agreement (https://www.spatialbiz.com/maintenace-support-agreement/) which may be updated from time to time by SBS in its discretion.

10. LIMITATION OF LIABILITY

You recognize that the price paid for the license rights herein may be substantially disproportionate to the value of the products to be designed in conjunction with the Software. For the express purpose of limiting the liability of SBS and its licensors to an extent which is reasonably proportionate to the commercial value of this transaction, you agree to the following limitations on SBS’s and its licensors’ liability. EXCEPT AS REQUIRED UNDER LOCAL LAW, THE LIABILITY OF SBS AND ITS LICENSORS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE OR DOCUMENTATION FURNISHED HEREUNDER AND ANY SERVICE SUPPLIED FROM TIME TO TIME SHALL NOT EXCEED, AS APPLICABLE, THE LICENSE FEE YOU PAID FOR THE SOFTWARE OR ANY FEE YOU PAID FOR THE SERVICE. IN NO EVENT SHALL SBS OR ITS LICENSORS BE LIABLE (DIRECTLY OR INDIRECTLY) FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; FOR LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF GOODWILL OR LOSS OF BUSINESS, OR FOR BUSINESS INTERRUPTION (REGARDLESS OF THE LEGAL THEORY FOR SEEKING SUCH DAMAGES OR OTHER LIABILITY,) ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION FURNISHED HEREUNDER AND ANY SERVICE SUPPLIED FROM TIME TO TIME.

THE LIMITATIONS OF LIABILITY IN THIS SECTION 10 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW TO ANY DAMAGES OR OTHER LIABILITY, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, EVEN IF SBS OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE. ALSO, YOU AGREE THAT THE LICENSE FEES, SERVICES FEES AND OTHER FEES CHARGED BY SBS AND PAID BY YOU ARE BASED ON AND REFLECTIVE OF THE ALLOCATION OF RISK CONTEMPLATED BY THIS SECTION 10 AND THAT THE LIABILITY LIMITATIONS IN THIS SECTION 10 ARE AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES.

11. GENERAL

11.1 Notices

Notices in connection with this Agreement by either party will be in writing and will be sent by electronic mail, postal service, or a delivery service (such as UPS, FedEx or DHL), except that you may not provide notice to SBS of an SBS breach or provide notice of termination of this Agreement by electronic mail. Notices from SBS to you will be effective (a) in the case of notices by email, one (1) day after sending to the email address provided to SBS, or (b) in the case of notices by mail or delivery service, five (5) days after sending by regular post or delivery service to the address provided to SBS. You hereby consent to service of process being effected on you by registered mail sent to the address set forth on your Customer Information Form (or, if no Customer Information Form has been provided, your last address known by SBS) if so permitted by applicable law. Notices from you to SBS will be effective when received by SBS in the mail at: Spatial Business Systems, LLC, 2901 Via Fortuna, Building 6, Suite 100, Austin TX 78746, Attention: Copyright Agent.

11.2 Third-Party Content

The software licensed hereunder may contain or be accompanied by third-party software, data or other materials that are subject to and provided in accordance with terms that are in addition to or different from the terms set forth in this Agreement. Such terms may be included or referenced in or with such third-party software, data or other materials (e.g., in the “About box”) or a web page specified by SBS (the URL for which may be obtained on the SBS website or on request to SBS). You agree to comply with such terms.

11.3 Governing Law and Jurisdiction

This Agreement will be governed by and interpreted in accordance with the laws of the State of Delaware, without reference to its choice of laws rules.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.  Any action or proceeding arising from or relating to this Agreement will be brought in the federal or state courts in the State of Delaware, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.  If any legal action is brought by a party to enforce the Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.

11.4 No Assignment; Insolvency

You may not assign this Agreement or any rights hereunder (whether by purchase of stock or assets, merger, change of control, operation of law, or otherwise) without SBS’s prior written consent, which may be withheld in SBS’s sole and absolute discretion, and any unauthorized purported assignment by you will be void. In the context of any bankruptcy or similar proceeding, this Agreement is and will be treated as an executory contract of the type described by Section 365(c)(1) of Title 11 of the United States Code and may not be assigned without SBS’s prior written consent, which may be withheld in SBS’s sole and absolute discretion. Any assignment (regardless of how or on what basis the assignment may occur) will be conditioned on compliance with the following: at least thirty (30) days before assigning or agreeing to any assignment of rights under this Agreement (including transferring any copies of or right to use the Software), (a) you must provide written notice to SBS, uninstall all copies of the Software, (b) the proposed assignee must agree to comply (and you must ensure that the assignee will comply) with all of the obligations of this Agreement with respect to such Software, which agreement must provide that SBS and its licensors are each a third-party beneficiary of the assignee’s agreement, and the assignee must provide a copy of the agreement to SBS, and (c) you and proposed assignee must comply with all other transfer procedures specified by SBS.

11.5 Third-Party Beneficiaries

SBS’s licensors are intended third-party beneficiaries of this Agreement who shall have the right to enforce, each provision with respect to the software licensed hereunder.

11.6 SBS Subsidiaries and Affiliates

You acknowledge and agree that SBS may arrange to have its subsidiaries and affiliates engage in activities in connection with this Agreement, including, without limitation, delivering the Software, provided that SBS (and not such subsidiaries and affiliates) will remain subject to the obligations of SBS under this Agreement. You also agree that SBS’s subsidiaries and affiliates may enforce (including taking actions for breach of) this Agreement.

11.7 Severability

If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision or any other provision of this Agreement in any other jurisdiction.

11.8 No Waiver

No term or provision of this Agreement will be considered waived, and no breach excused, unless such waiver is in writing signed on behalf of the party against which the waiver is asserted. No waiver (whether express or implied) will constitute consent to, waiver of, or excuse of any other, different, or subsequent breach.

11.9 Audits

You agree that SBS has the right to require an audit (electronic or otherwise) of the Software and the installation thereof. As part of any such audit, SBS or its authorized representative will have the right, on fifteen (15) days’ prior notice to you, to inspect your records, systems and facilities, including machine IDs, serial numbers and related information, to verify that the use of any and all Software is in conformance with this Agreement. You will provide full cooperation to enable any such audit. If SBS determines that your use is not in conformity with the Agreement, you will obtain immediately and pay for valid license(s) to bring your use into compliance with this Agreement and other applicable terms and pay the reasonable costs of the audit. In addition to such payment rights, SBS reserves the right to seek any other remedies available at law or in equity, whether under this Agreement or otherwise.

11.10 Language

The English language version of this Agreement is legally binding in case of any inconsistencies between the English version and any translations. If you purchased the license for the Software in any country, you agree to the following: The parties hereto confirm that it is their wish that this Agreement, as well as other documents relating hereto, including notices, have been and shall be written in the English language only.

11.11 Construction

Ambiguities in this Agreement will not be construed against the drafter.

11.12 Force Majeure

SBS will not be liable for any loss, damage or penalty resulting from delays or failures in performance resulting from acts of God, supplier delay or other causes beyond SBS’s reasonable control. A force majeure event will not excuse or delay Customer’s obligation to make payments due under this Agreement.

11.13 Conflict

In the event of a conflict between the terms and conditions of this Agreement and those of an Order Form, the terms and conditions of the specific Order Form will control, unless specifically stated otherwise in an Order Form.  Notwithstanding the foregoing,  the Agreement will take precedence over any additional or conflicting terms and conditions contained in any statement of work, proposals, invoices, acknowledgments or other communications between the parties.  In no event shall any terms and conditions on any Customer provided invoice or purchase order be binding.

11.14 U.S. Government Rights

For U.S. Government procurements, the Software is deemed to be commercial computer software as defined in FAR 12.212 and subject to restricted rights as defined in FAR Section 52.227-19 “Commercial Computer Software – Restricted Rights” and DFARS 227.7202, “Rights in Commercial Computer Software or Commercial Computer Software Documentation”, as applicable, and any successor regulations. Any use, modification, reproduction release, performance, display or disclosure of the Software by the U.S. Government shall be solely in accordance with license rights and restrictions described herein.

11.15 Export Control

You acknowledge and agree that the Software is subject to compliance with United States and other applicable country export control and trade sanctions laws, rules and regulations, including, without limitation the regulations promulgated by the U.S. Department of Commerce and the U.S. Department of the Treasury (collectively, “Export Control Laws”). You represent, warrant and covenant that neither you nor your personnel (i) are a citizen or resident of, or located within, a nation that is subject to U.S. trade sanctions or other significant trade restrictions (including, without limitation, Cuba, Iran, Sudan, Syria and North Korea), (ii) are identified on any of the U.S. government restricted party lists (including, without limitation, the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons, the U.S. Department of Commerce’s Denied Party List, Entity List and Unverified List and the U.S. Department of State’s proliferation-related lists), (iii) will, unless otherwise authorized under the Export Control Laws, use Software in any restricted end use, including, without limitation, design, analysis, simulation, estimation, testing, or other activities related to nuclear, chemical/biological weapons, rocket systems or unmanned air vehicles applications, or (iv) will use the Software to disclose, transfer, download, export, or re-export, directly or indirectly, any user-specific output generated by the Software, your content, third-party content, or any other content or material to any country, entity, or party that is ineligible to receive such items under the Export Control Laws or other laws or regulations to which you may be subject. You understand that the requirements and restrictions of the Export Control Laws as applicable to you may vary depending on the Software provided under this Agreement and may change over time. You shall be solely responsible for (i) determining the precise controls applicable to the Software, and (ii) complying with the Export Control Laws and monitoring any modifications to them.

11.16 Entire Agreement

This Agreement constitutes the entire agreement between the parties (and merges and supersedes any prior or contemporaneous agreements, discussions, communications, agreements, representations, warranties, advertising or understandings) with respect to your license rights to use install and use the Software. The parties acknowledge that, in entering into this Agreement, they are not relying on any agreements, discussions, communications, agreements, representations, warranties, advertising or understandings other than as expressly set forth in this Agreement. Terms stipulated by you in any communication which purport to vary this Agreement or such other terms will be void and of no effect unless agreed in a writing signed by an authorized representative of SBS. Any other modifications to this Agreement will also be invalid unless agreed to in a writing signed by an authorized representative of SBS.

Contact Information.

We welcome your comments or questions regarding this EULA. Please email us at [email protected].